Appendix — Cowan v. Oliver

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APPENDIX A

No. 73-1474

UNITED STATES COURT OF APPEALS

For the Sixth Circuit

MAXWELL OLIVER Petitioner-Appellee,

Vv.

HENRY E. COWAN.

Superintendent, etc. Respondent- Appellant.

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE EASTERN

DISTRICT OF KENTUCKY

Decided and Filed November 21, 1973.

BEFORE: EDWARDS and LIVELY, Circuit

Judges; and CECIL, Senior Circuit Judge.

PER CURIAM. This is an appeal from an order

granting habeas corpus relief to a prisoner who is

serving a life sentence imposed by a jury following a

plea of guilty. Upon indictment for willful murder,

Maxwell Oliver pled guilty with the assistance of ap-

pointed counsel on January 21, 1959. Under Ken-

tucky procedure the jury fixed the punishment in

criminal cases and was permitted in this case to decree

either death or life imprisonment. On the same Cay

that the jury verdict was received, the court passed

formal sentence of life imprisonment in the absence

of counsel for Oliver. The question presented ts

whether, under the circumstances of this case, formal

sentencing was a critical stage in the criminal pro-

ceedings at which the defendant was entitled to the

assistance of counsel.

Under the code of criminal practice in effect in Nen-

tucky in 1959 the court was permitted to enter judgment

immediately in cases involving guilty pleas while being

required to wait two days before rendering judgment in

other cases. Kentucky Criminal Code, Section 283: Sorke

v. Commonwealth, 271 Ky. 482, 112 S.W.2d. 676 (1938).

The Code did not refer to sentencing. but prescribed

certain procedures in connection with “rendering judg-

ment” in criminal cases. References to “sentencing” and

“pronouncing judgment” were held to have the same

meaning in Lovelace v. Commonwealth, 285 Ky. 326, 147

S.W.2d. 1029 (1941).

The Criminal Code, § 284, provided that the judg-

ment of the court should affix the degree of punish-

ment to be inflicted as found by the verdict of the jury

or fixed by law. Section 285 required the presence of

the defendant at the time that judgment was rendered

against him in cases of felony and § 286 provided,

“When the defendant appears for judgment, he must

be informed by the court of the nature of the indict-

ment, his plea and the verdict thereon, if any; and he

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must be asked if he has any legal “cause to show why

ivdgment should not be pronounced against him.”

The next section of the Criminal Code, number 287,

then provided causes which a defendant might impose

to prevent the rendition of judgment against him. These

included *. .. any sufficient ground for a new trial, or

for arrest of judgment; [or] ... that he is insane.”

Since Kentucky procedure required that he be asked at

tormal sentencing if he had any legal cause why sen-

tence should not be pronounced, it would appear that

the assistance of counsel would be required to advise

the defendant if any of the causes set forth in Section

287 existed in his case.

In his brief, the respondent argues that the defend-

ant would have had ample opportunity to present any

reasons why judgment should not have been rendered in

eecordance with the verdict upon his motion for a new

irial or for probation, quoting from Mc/ntosh v. Com-

monwealth, Ky.. 368 S.W.2d 331. 335 (1963). In 1959

a person serving a life sentence in Kentucky was ineligi-

hle for probation pursuant to Kentucky Revised Statutes,

§ 439.020. On page 12 of his brief the respondent states,

“A defendant could not make a motion for a new trial in

case where he has pleaded guilty.” Thus the two op-

portunities for presenting reasons why judgment should

not he rendered in accordance with the verdict were not

available to the petitioner Oliver at a time subsequent to

formal sentencing. which increased the importance of

counsel at sentencing in his case.

Section 174 of the Criminal Code in effect in 1959

provided that the court could permit a plea of guilty to

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be withdrawn and a plea of not guilty substituted “[a]t

any time before judgment.” Certainly the presence of

counsel would be required for an intelligent determina-

iion of whether a change of plea should be undertaken.

Cf. Mempa v. Rhay, 389 U.S. 128, 136 (1967).

In Powell v. Alabama, 287 U.S. 45 (1932), the

Supreme Court held that a defendant in a criminal case

. requires the guiding hand of counsel at every step

in the proceedings against him.” 287 U.S. at 69. Even

though under the 1959 Kentucky procedure the judge did

not determine the degree of punishment, we view formal

sentencing as more than a mere ministeria! ceremony in

light of the possible steps available to the defendant at

that proceeding.

Although Kentucky continues to require that the

jury fix the degree of punishment, new Rules of Crimi-

nal Procedure were adopted in 1962 and the issue de-

cided here has not been presented to this Court in a

case tried under the new rules.

The judgment of the district court is affirmed.

Upon remand an order will be entered granting the

habeas corpus petition of Maxwell Oliver unless he

is resentenced with either retained or appointed coun-

sel present within 60 days from the entry of such order.

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